Appeal brought on 25 January 2019 by Banco Santander, S.A. against the judgment of the General Court (Ninth Chamber) delivered on 15 November 2018 in Case T-227/10 Banco Santander, S.A. v European Commission

Uphold the application for annulment and definitively annul the contested decision; and

Order the European Commission to pay the costs.

Grounds of appeal and main arguments

On 15 November 2018, the General Court gave judgment in Case T-227/10, Banco Santander, S.A. v European Commission, 1 against which this appeal is brought. The judgment dismissed the appellant’s action against the European Commission’s decision of 28 October 2009, 2 on ‘financial goodwill’ regulated by Article 12.5 of the Spanish Ley de Impuesto sobre Sociedades (Law on Corporation Tax).

In support of its appeal, the appellant relies on a single ground of appeal, alleging that, in the judgment under appeal, the General Court erred in law in its interpretation of Article 107(1) of the Treaty on the Functioning of the European Union (TFEU), in relation to the concept of ‘selectivity’.

In particular, it is submitted that the General Court erred:

In determining the reference system at the first stage of the selectivity analysis;

In determining the objective forming the basis for comparing the separate legal and factual situations at the second stage of the selectivity analysis;

Consequently, the General Court also erred in the attribution of the burden of proof and the application of the principle of proportionality;

In the alternative, in its examination relating to the supposed lack of proof of a causal link between the companies’ inability to merge abroad and the acquisition of holdings abroad; and

In the alternative, in ruling out the severability of the measure according to the control percentage;

In addition to maintaining a legally incorrect line of reasoning, the General Court substituted its own reasoning for that of the Commission’s decision in relation to a number of the abovementioned points, thus giving rise to further errors of law.